Musings and Snippets from a recently retired JP. I served for 31 years, mostly in west London. I was Chairman of my Bench for some years, and a member of the National Bench Chairmen's Forum All cases are based on real ones, but anonymised and composited. All opinions are those of one or more individuals. JPs swear to enforce the law of the land, whether or not they approve of it. Nothing on here constitutes legal advice.

Friday, August 17, 2012

The Plot Thickens

This post was submitted by an anon. person whom I do not know, so he or she may or may not be anyone or anything in particular:-

A spokesman for the Judicial Office is reported to have said that:-

“The guidance (on "blogging") was agreed by the Magistrates Liaison Group: chaired by
the Deputy Senior Presiding Judge (Lord Justice Gross) and attended by
the Chief Magistrate, the Magistrates Association and the National Bench Chairs Forum.”

Neither of the latter organisations has said anything at all to its members or to the public about this situation. Whose side are they on?

Your contempt is certainly evident, and I have frequently pondered why an individual should hold such unconditionally unchanging views about an inanimate body. All the more so as the MA, like any other membership organisation, is regularly 'renewed' in its composition. I hope there aren't too many other organisations or bodies on which your views are so inflexibly set, otherwise you must find it difficult to remain impartial in court.

Individuals may change, the underlying ethos of an organisation may not. Like attracts like. And I resent your conflation of a view of the MA which I have experienced with an inability to weigh evidence fairly and in accordance with my Judicial Oath. Grow up.

I think the problem may be that the blogs from JPs often are critical of the MA (and rightly so, and of District Judges (MC) sitting alone on trial and dealing with high profile cases.You canot expect representatives of this bodies to be on your side.

When it comes to a matter of principle (as this should be, rather than a comment on a few individual blogs) one might reasonably expect any judicial bodies to be considering those principles and to be looking to the future.

Indeed, and that certainly seems to be the tenor of the MA Chair's statement, issued last Thursday, inviting comment and views. That it most unfortunately then disappeared from view may fuel the flames lit by conspiracy theorists, but I am assured that this was not intentional, and will be redressed first thing on Monday!

We might, however, have hoped that they would consider the requirements of HRA Article 10. If not, they should have had a legal advisor in there with them.Incidentally, no longer being a judicial office holder, I have decided that although I will continue with the nom de plume,'payasoru', I will not conceal my identity further. If that leads to me being turfed off the Supplemental List, so be it.

Thanks for the question, Sub Rosa, which allows me to clear up a not uncommon confusion. Whilst your alternative formulation would allow people to get to the answer in the end, standard practice - for the avoidance of doubt - is to refer to "Convention rights", using the numbering of the ECHR itself, and, where appropriate, its Protocols. The HRA did not incorporate into British law all articles of the ECHR (Article 13 on effective remedy was omitted, for example, because the HRA itself was intended to provide such redress), and in addition the UK has not signed and/or ratified all the Protocols to the Convention. Since I am never knowingly curmudgeonly, I would probably have accepted "HRA Schedule 1 Article 10", but because I'm essentially a very simple soul, I find the Conventional usage (apologies for the dreadful pun) of "Article 10" much easier.

MotVG’s de haut en bas lecture suggests he will be astonished to learn that many of us did already know the more common practice. But it remains that Payasoru’s “HRA Article 10” wasn’t actually wrong and its meaning was perfectly clear to all – including, as his initial intervention demonstrates, to MotVG himself. So what was the point? Showing off?

No, I don't think he was showing off at all! I think that, like me, he thinks that if, without over much effort, one can get something right, one ought to do so! Furthermore, the HRA is, IMHO, subordinate to the ECHR, which has been ratified by 50+ states.

If some bright spark chose to refer to an article of one of the four Geneva Conventions of 12 August 1949, by reference to the (UK) Geneva Conventions Act 1957, would you think that was a useful route?

For those who may have missed the point, the phrase "de haut en bas" used rather condescendingly by SR means just that, condescending! And this from the person who claimed to be "still not clear" as to why MotVG balked at the HRA reference (others have been referring to s10 HRA).

The term “Magistrates Liaison Group” seems to have come into public view only in the last week or so. However, on the judicial intranet (PW protected) page for the National Bench Chairmen’s Forum, the NBCF newsletter’s ‘Diary Dates’ section has been recording the scheduled dates of “Meeting with the Senior Presiding Judge, Magistrates Association, the Chief Magistrate, Justices Clerks Society, Judicial College and HMCTS”.

(Formerly Penguin): I would love to know how many members the MA has nowadays. Incidentally, having attended a national training event in the last couple of years and hearing a representative from Fitzroy Square refer to Bystander including the phrase "we know who he is now....", I was able to make certain decisions about my attitude to the MA.

Answer for Anonymous: in 2007 the MA had 27,748 members out of total JPs of 28,865 and 5,243 of those were retired JPs.In 2012 there were just under 26,000 JPs of whom 17,800 were active members of the MA and 5,782 were retired.

Material on the MagAss website forum (MA members only I'm afraid) confirms that its Chairman was at the Magistrates' Liaison Group meeting at which the circular was aired and that he, on behalf of the Association, agreed the guidance, as he deemed it to be consistent with the objective of the Association to 'maintain public confidence in the impartiality of the judiciary'. He goes on to say that he intends over the coming weeks to seek the views of a cross-section of members and to report back to all members and to the Magistrates' Liaison Group.

Basically, this boils down to the fact that the senior judges issued the secretive Liaison Group an edict and they rolled over and accepted it. If the MA Chairman could simply agree this, then he has too much power and the membership should rein him in.

Not necessarily, ObiterJ. It could have been the other way around - and I'm not sure which I find the more worrying. Either way, it does not appear to have have enough thought, consultation and scrutiny put into it.

It would, I think, be proper to seek the views not only of a cross-section of members, but specifically of those members who blog, and also - and importantly - of at least some members of the public who read the blogs in order to gauge whether their confidence in the judiciary has been maintained, enhanced or diminished by either blogging or the recent guidance.

One way of doing that would be to (with Bystander's aid) to put a post up on this blog, but then that would leave the Chairman in breach of the guideline that he so hastily agreed to. Oops.

I am left wondering who it was instigated this guidance in the first place and what (apparently urgent, given the use of word "forthwith" and that it seems to have be initially air d ad at the same meeting) need it is meant to address. Nothing so far published appears to give any clue

If it helps, as a serving and subsequently retired magistrate, I have been reading this blog for five or six years now. At retirement I had fourteen years under my belt, so have a modicum of experience. I have never known Bystander to stray beyond the limits of fair comment and the utmost discretion when referring to actual cases. I may not always agree with his opinions or conclusions, but I have no hesitation in saying (and I use the word advisedly) that he is always judicious in his postings. The people who wish to close him down and othres like him should at least have the courtesy to read him and share with us what they find unacceptable. A case of 'put up or shut up'.

I agree payasoru. Let them share with us what they find unacceptable apart that is from blogging per se though I don't suppose for a moment that these democratic souls are about to do so.

I have blogged extensively on this subject. Yes, there are some risks when judicial office holders blog and such people accept that by taking the Queen's shilling they will be subject to some restriction. However, this guidance (so-called) is beyond the pale. It seeks (via threats of unspecified disciplinary action) to prevent even the most responsible blogging. The document is not worthy of the name "guidance" because it contains none.

Many of the comments here seem to be from people somehow involved or ex-involved in the justice system, but I suspect (bolstered by the ranking that Bystander's blog gets on Alexa) that there are plenty of the ordinary public watching this too, and it is a real shame that we've got ourselves bogged down in this sort of internal discussion as a result of "guidance".

I'm a shopkeeper. Not a judge, not a magistrate or lawyer or policeman. I found this blog about six months after Bystander started it and have been following ever since. So, probably, I am part of the public whose perception of the judiciary might be compromised by such blogging. Far from it. This blog, and others linked to from it, have kindled an interest in law and the legal process, encouraged me to support witnesses and their parents in the Magistrates' Court and persuaded me that there are things here worth volunteering for and doing well for the benefit of society. If that's threatening the public perception of the judiciary then I am a banana or a monkey's uncle or something. Which I am not.

It's important, I think, to differentiate between what a blogger posts and what happens in the blog comments or on public or private forums. Sometimes here we degenerate into internal magistrate chitchat or local bickering, which leaves me cold; and sometimes a poster perceives bias where there is none (or none apparent to me, and that isn't a specific jibe at you Ed(NB) as there have been others, but really I think you are reading more into this blog than there is). The same sort of thing happens in the MA forum as evidenced by Bystander's post here http://thelawwestofealingbroadway.blogspot.co.uk/2010/07/sticks-and-stones.html - but note that Bystander doesn't confuse the postings of what might be the 'usual suspects' with the views of the MA itself.

Back to point. I'd lose a bunch of useful insight if this blog were to vanish or to be robbed of its salient content. So, I imagine, would many others outside the legal professions. On the whole, it seems to me that the guidance as written would keep the law and legal processes locked away from the likes of us - who are the most likely to be vulnerable and nervous when faced with a court appearance, whether as defendants, victims or witnesses. That would be bad news all round. Given that we have this guidance business going on, I would encourage "lay" (I hate that term) readers of the blog to post their views here as a sort of substitute for whatever proper consultation hasn't happened.

Don't be nervous. Despite appearances sometimes this blog (like the courts) is not necessarily as scary as it seems.

Yes, I've been here since more-or-less the beginning - or at least it didn't take me all that long to catch up. And I have pretty well read everything written here, by Bystander and others. As you hint, I may not know what you know and have done what you have done, whatever it is or may be (and sure, I'd be quite happy to share experiences - it isn't all that hard to find my email address, and I am by no means averse to getting into other points of view).

But, speaking as an outsider to all of this, and so I can sort of be counted among the unbiased reader, I do get the feeling that of late (and only of late, I do remember some good stuff from you in the past) you've maybe been letting some preconceptions colour your judgment a bit. I used enjoy your interventions, as they give me pause, but recently you've gotten a bit laconic rather than informative - maybe because (I guess like me) the community of commenters here looks like the blog gets full of magistrates rather than all manner of outside people who I guess are mostly too shy to comment.

I do have a couple of retired coppers among my close friends, so I'm not entirely innocent here - but I think it would help a bit if you explained yourself a bit more and hurled accusations a bit less. You might find more alliances that way.

Anyhow, this is a bit of a diversion from the main topic here and probably not all that helpful in terms of opening up the public perception of justice - which regardless of whatever relatively petty (in my eye) things separate prosecutors/police/defence lawyers/magistrates and so on has been until recently something of a closed shop and thanks to blogs like this promises to be a bit more open and accessible to the rest of us.

By the way ... note the climb down - in the face of considerable political opposition - to the "guidance" on Police and Crime Commissioners. The very latest guidance on that is far more considered and sensible than the initial "if you stand for election get out of the magistracy" statement.

Also, on the subject of oversight of the police, one of my duties was to serve on the panel that selected magistrate members for our police authority. It never occurred to the then LCD that successful applicants should stand down from the bench, even if later elevated to the role of Chairman.

We have to be a little careful here. Up to the Police Act 1964 (which created Police Authorities) Magistrates served on Watch Committees. The Magistracy also had very strong links with local government. When the PAs were formed, Magistrates managed to retain some membership.

Over the years, modern notions of judicial independence have developed and it is arguable that, even if PAs had continued, Magistrates ought not to have continued on the PAs.

The Police and Crime Commissioners are a radically new approach. (Good or bad is a political question). I cannot disagree with Golding LJ on this. These days, it would be incompatible for a Magistrate to be also a PCC. However, I believe that he went wrong when, at first, he dictated that even campaigning would require resignation from the bench. I think that the most recent guidance is much better - stand down during the election and only go if elected.

However, any JPs who do campaign are still going to have to be very careful what they publish and say. This may (I'm mot sure) inhibit them to some degree and may offer their opponents something of an advantage in the election.

Perhaps Bystander might wish to do a distinct post on this ?? I did not mean to digress this particular post away from the judicial blogging scenario.

"I am left wondering who it was instigated this guidance in the firstp lace" asked phisheep. Maybe the answer lies with the magistrate who states he reported his worries about Bystander to the OJC. His worries seem to have arisen in his imagination and were answered by Bystander in 2010 (cited by phisheep above.

Let's face it, what are the actual sanctions which can be imposed for breach of this ridiculous edict? Deduction of pay? Written warning? Demotion? The worst that can happen to a volunteer is that his or her ability to continue a valuable contribution to society is ended unceremoniously. Not a particularly harsh sentence and if the Senior Judiciary wish to lose dedicated, sensible, experienced people then their loss will be other charitable organisations gain.

If you enjoy being a magistrate - as most do - then the sanctions (i.e. not being a magistrate) are actually rather draconian.

And that of course is the issue. We have at present no understanding whatsoever of the circumstances under which such sanctions might be exerted.

Whether it might be because the public's perception of the magistracy has been badly damaged (in which case the sanctions will probably be being applied correctly) or whether it's simply because a JP has blogged (in which case they will be a ridiculous and counter-productive over-reaction). Who knows?

Personally, I believe removal from office is a price worth paying to demonstrate a commitment to free speech and freedom of expression by whatever media. The bully boys in wigs should not get their way on this. BS has proven that a Mag can blog whilst maintaining the Judicial oath and his, and others of a similar mind's right to continue should not be hampered.

But I don't think a single magistrate would hold the view that theirs is an unqualified freedom of speech. A line needs to be drawn, we would all agree. But there will still be unanswered as yet questions about that line.

The questions are :

1) Who draws the line (I'd be happy with the SPJ) and 2) Who then measures if it has been crossed and how?3) What happens if the line has been crossed but by an inch not a yard?4) etc etc

It may be to the individual concerned who has given their services for many years, is a respected member of a bench and believes they have done nothing that warrants their removal from the bench. It seems to me very much as though, whatever we may hear from some ‘senior’ members of the judiciary from time to time, there are plenty who have no interest at all in what we do, probably don’t recognise us as members of the judiciary and will be very happy to see the back of us. BS should expect support from the MA, but will not get it. They are a toothless loss. I was a member for several years but finally this year decided to save my money and did not renew my subscription. Has anyone from the MA or my branch followed up with me to ask if I may have just forgotten to send my cheque? No of course not. To them I was just a statistic and now I am not even that.

Agree 100% with Anon 14.02 (I also resigned some years ago and no-one asked the reason). No-one has commented upon the current morale level of court staff and in particular, legal advisers. There is no doubt that morale amomg the magistracy is the lowest that I have known it in the 20 years that I have been sitting. They feel undevalued because they are undervalued. Yet throughout that time, court staff have been supportive in every way. We have been trained by excellent legal advisers and aided both in and out of court by professional and committed court staff at every level.The constant series of changes forced upon them by HMCTS has had a very debilitating effect upon staff and they see the role of the justices who they have trained and supported being decimated and magistrates being repeatedly demotivated. I am glad that I won't be part of the Criminal Justice System when lay justices are almost entirely removed from the courts, legal advisers are no longer required (by DJs and DDJs), 'local justice' is exposed as the fiction that it is and defendants are no longer judged by their peers (and yes, we are, in many cases, their peers).

In the oh-so-different days when I was appointed one name very quickly became well-known to me; Rosemary Thompson, Chairman of the MA. Whenever anything of direct or indirect concern to mags surfaced, you could rely on Rosemary to be there in the TV studio, or in the print media, spelling out clearly and simply, the problem, the views of her members, and the desired course of action. She took it upon herself to make sure that whatever behind-the-scenes manouvres might be in progress, she was out there in public speaking out on behalf of magistrates.Where are her like today?

If there is one thing this blog has shown is that 'lenient' sentences are not always the result of weak decisions by the courts, rather the judiciary following the guidelines and options available to them.

Without blogs like these, we will have only the likes of the Daily Mail from which to form opinions.

The guidelines are legally binding. However, it is legally possible to go outside them if one provides reasons. The complaints arise because JPs very nearly never go outside them. Presumably this is because they lack the moral courage to provide reasons.

"The complaints arise because JPs very nearly never go outside them."That may be the case in Anonymous's court, but every week we go outside them for various reasons - proportionality (ie not applying a Band A fine to a £2000 per week earner for driving at 35mph in a 30 limit), unjustness or inability to pay what the guidelines state. In every case we give our reasons, and always run them past our Legal Adviser to make sure. Moral courage does not come into it, we do what we feel is right.

I am afraid, NBJP, that it looks as if one of our resident trolls has switched to anon. so that he can carry on making snide remarks about JPs. He doesn't have a scrap of knowledge nor a shred of evidence about the way benches work, and he doesn't seem too keen to learn.

It would indeed be a rare day in Court when every sentence was exactly aligned to what the Guidelines suggest. After all, they are there to provide a consistent framework for sentencing, not a restraint. Providing sound, clear (and clearly legal!) reasons can be given, then a Court can sentence as it wishes in most cases.

I only mention this, because of course it's exactly this sort of helpful insight that the new Guidance would have disappear from the internet.

And we go upwards too - a theft or drunk and disorderly that would normally attract just a fine can result in custody if it is for the umpteenth time and we feel the public needs a break. Or we might decide His Honour needs to see someone even it would normally be dealt with by the bench. As I said, it is about what we feel is right.

Thank you north bucks jp. Having read this blog since it's inception, I should have remembered something along these lines being mentioned before. But after seven years, it's hard to recall every piece of information.

I feel my original post that sparked all these replies has been corrected. Thanks again.

What The Papers Said

40 Bloggers That Really Count (Times)There are 30,000 or so unpaid magistrates across England and Wales. For five years, one of them has anonymously detailed the cut and thrust of the job, providing a grimly funny insight into Britain’s sinful underbelly with the same feel and tone as a Hogarth or Dickens.